Varnado v. State of Nevada et al

Filing 17

ORDER. IT IS ORDERED that petitioner's motion to strike 14 is DENIED.IT IS FURTHER ORDERED that petitioner shall have fourteen (14) days from the date of entry of this order within which to file his opposition to the motion to dismiss. Respon dents shall have seven (7) days after the filing of the opposition within with to file their reply. The court is not inclined to grant any motions for extensions of time absent a showing of extraordinary circumstances. Signed by Chief Judge Robert C. Jones on 1/11/2012. (Copies have been distributed pursuant to the NEF - MLC) Modified on 1/11/2012 to add spaces to words. (MLC).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LAVAR GARY VARNADO,

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Petitioner,

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vs.

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STATE OF NEVADA, et al.,

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Respondents.

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3:11-cv-00325-RCJ-VPC
ORDER

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This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which petitioner, a

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state prisoner, is proceeding pro se. On August 4, 2011, respondents filed a motion to dismiss the

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petition. (ECF No. 12.) In response, petitioner filed a motion to strike the motion to dismiss as

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procedurally improper and requested that the court rule on the motion to strike before requiring him to

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oppose the motion to dismiss. (ECF No. 14.)

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Petitioner argues that respondents’ motion to dismiss is not properly before the court because the

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court ordered respondents to file an answer and prohibited motions to dismiss. Petitioner is incorrect.

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The court authorized respondents to file an answer or “other response” to the petition. (ECF No. 5.)

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In the Ninth Circuit, the filing of a motion to dismiss is expressly authorized by Habeas Rule 4. Habeas

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Rule 4 Advisory Committee Notes, 1976 Adoption and 2004 Amendments; White v. Lewis, 874 F.2d

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599, 602-03 (9th Cir. 1989). Accordingly, the court denies petitioner’s motion to strike.

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IT IS THEREFORE ORDERED that petitioner’s motion to strike (ECF No. 14) is DENIED.

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IT IS FURTHER ORDERED that petitioner shall have fourteen (14) days from the date of

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entry of this order within which to file his opposition to the motion to dismiss. Respondents shall have

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seven (7) days after the filing of the opposition within with to file their reply.

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inclined to grant any motions for extensions of time absent a showing of extraordinary

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circumstances.

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The court is not

Dated this 11th day of January, 2012.

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UNITED STATES DISTRICT JUDGE
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